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Moot Court and Trial Advocacy

Lecture Diary

Lecture 1 14 th
February
2023

Prof. Avaantika Chawla

What is a chargesheet? It is the final report which is to be put up before the trial court- all the
investigation summed up by the investigating officer is entailed in the same.

Broad categories of a criminal trial-

o Complaint
o FIR
o MLC
o 164 Statement to the MM
o 161 Statement- Examination of witnesses by police
o Investigation
o Chargesheet

POCSO Case- 12 yr old girl, with mild mental disability, 50% paralyzed, was sexually
abused by the neighbour on the pretence of the child’s father being there, the criminal
complaint was filed by the child’s sister.

What is the first step in a criminal trial?

 File a criminal complaint- you can write it yourself or someone can do it on your
behalf.
 General Diary
 Filing of FIR

Duty Officer- the first person you “meet” at the police station, give a written complaint to
(vernacular lang. or English- addressed to the SHO) and write the name of the Police Station.

Important components/ Details in a written complaint-

 Date,
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 Time,
 Place,
 Who (if known),
 Exact details, i.e., the first narration of facts. Give a rough time e.g., about 6 p.m.

The written statement becomes the FIR. Ensure that all the facts needed to prove the charge
are present i.e., the ingredients of the assault in detail should be present- be specific but only
about relevant things otherwise they can be used against you. The complaints are entered in
the diary i.e., the general diary, to ensure that a complaint was filed. Get a copy of the same
with the name of the duty officer with the entry number. Then, an FIR will be registered.

Usually, the FIR has 2, sometimes 3 pages. In general, the 1 st page has details of the incident
(when-where-who etc). On the top right, there is the district of the police station, the year of
the FIR, the FIR number, followed by the date. The year of the FIR & the FIR number can be
used to pull out the details of the case from the E-courts website.

In cases of assault, the victim is taken for a medical examination.

Medico-Legal Certificate (MLC)- Extremely intensive and invasive process but extremely
crucial, contains details about the incident. Timeframe for MLC is right after the registration
of the FIR- however, there is no requirement for an FIR to be registered before getting an
MLC/ or for a victim to get medical attention- CrPC says giving medical attention is a must
and reporting it after- medical evidence should be preserved. Consent is to be taken for some
parts of it, guardians give consent for minors. For females- if there is no relative present,
there must be a female staff member instead. All questions are important as all questions
affect the sample collection. The clothing of the victim that they were wearing at the time of
the assault is also collected. Forensic evidence entails swabs of stains, pictures of marks, nail
scrapings, nail clippings, pubic hair, vaginal/ anal swabs, blood samples, pregnancy tests, a
list of injuries, etc. A Medical Examination can be refused but the same can be brought into
question. If the doctor feels like the victim needs mental help, they can also suggest seeking a
psychologist or psychiatrist or both. The Child Welfare Committee (CWC) steps into the
picture when the victim is a minor.

There is also a parallel medical examination of the accused done- general stats, injuries, and
medical attention if required. DNA sampling- blood sample. In the case of sexual assault, a
potency test is done.
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164- Recording of Confession and Statement- They have to be recorded verbatim by the
judge - no deviation from what the survivor is saying. For adults there are no prerequisites,
for minors there is an additional step where they speak to the child first and ask a series of
questions to see whether they understand and depending on the way the child answers, 164 is
recorded.

It must be recorded by Metropolitan Magistrate. It is tried that the gender of the victim is the
same as that of the Metropolitan Magistrate. An application is to be put up by the
investigating officer of the case to the MM- can be referred to someone else by the MM-
application is usually put in front of the Additional Sessions Judge because they are going to
be covering the case and then it goes to the MM. When the application is taken up, details
such as whom the child has come with and who all are there in the room when the statement
is being recorded because ideally the child/survivor should only be with the judge in there.
Children might sometimes need a parent or social worker present because they might be
extremely traumatised, this is there not for the adults.

At no point in time there is any actual contact in the process between the child survivor and
the accused- a judge can go meet the child but that’s outside -the testimony works is the
questions are first put to the judge will see if the questions are child friendly or not or they
can even reject the questions in entirety or they can change the way the question is to be
asked and then the judge will speak through the microphone, the support person sitting in the
other room has earphones and then the child is asked the questions, ideally but this is far from
the truth.

In terms of resources for children victims available within the government sector, there’s
barely anything available. Children in conflict with the law are seen by a body called the
juvenile justice board -it has been set up under the act of 2015 but it has been around awhile-
this board has 3 members, one judge and 2 social workers to ensure that the children are also
looked at from the psychosocial lens.

161- all other witness statements taken by the investigating officer- only for corroboration- it
has the statement of the police constable during the arrest of the accused to anyone who may
have witnessed the incident. doctors who may have examined the accused and the survivor,
police officers who recovered the weapons. 161 statements are a lot in number and it gives
you the actual gist of how the investigation was conducted. Everyone who gives the 161
statements becomes the prosecution witness. the prosecution witness list can be found
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attached to the charge sheet. There is a provision in the CrPC which helps you drop a
prosecution witness if the defence council agrees. There are 2 types of witnesses- prosecution
witness (everyone on the list) and defence witness (anyone the defence might want to call)-
hostile witness goes in the favour of the defence which can be used by them. The chargesheet
is then submitted but if there are additions to it later the same can be filed with a
supplementary chargesheet.

One of the most common things in chargesheet of criminal cases is a site map where they
take the witness to the site to identify where the incident took place- the same is marked on
the site map and the same has the signature of the victim- this also helps when location
specific questions happen. When the accused is arrested, they are required to prepare the
arrest memo- who, where, when, how, who all were the arresting officers etc. After the arrest
is done- a personal search memo is prepared where anything found on the accused is also
included. A full list of all the evidence prepared- who is the officer carrying the evidence
with particular numbers is also noted down to keep track. When this is submitted they get the
acknowledgement of case acceptance.
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Lecture 2 20 th February
2023

Prof. Shaurya Upadhyay

Arbitration and Trial Advocacy

International Commercial Arbitration Advocacy

 ICA is a two party, consent based, adversarial dispute resolution process which
involves as participants the disputing parties, the arbitration tribunal and domestic
courts in a supervisory capacity. 
 In the case of “institutional arbitrations” which is slowly becoming the standard, we
also see the participation of the arbitral institution as an administrative organisation. 
 Arbitration proceedings are extremely confidential and so there are very few
resources available. 
 Summary of intl. arbitration – commercial private parties at mostly neutral venues;
Party- centred, often government is not involved.  
 Arbitration clauses or sunset clauses are usually present at the end of the contract
generally.  
 Parties choose from tailor-made procedural laws, rules, rules of evidence etc. like
SIAC, IBA evidence rules etc. Thus, institutional arbitration is becoming a standard.  
 Case management conference – Deciding on evidence, no. of written statement
presentations before the tribunal. 

Procedural steps within International Commercial Arbitration

 Request/ Notice for Arbitration

Party A sends a notice to the other by CC’ing the arbitral authority  

Pre notice, a lot of processes decide whether to go ahead with arbitration or not.  

 Response to the notice

Party B responds to the notice 

 Constituting the arbitral tribunal

 Preliminary steps
Case management conference
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o Weeds out irrelevant issues

o Procedure, how to take evidence, discuss issues, discuss point that parties have
consented on

Terms of reference

o Parties discuss the issues and come up with points of contention by mutual
consent
o If parties already know their disputed issues, then the terms of reference would
already have the issues

Procedural order

o Mini hearings on all the disputes - arbitrator decides whether relevant issues or not
o Bifurcation of proceedings (suggested by parties)

Interim relief

o Injunction, security amount

Jurisdictional/ Admissibility objections

 The Adjudicatory process

o Collection of evidence
o Documentary discovery (in some jurisdictions)
 Annex all documents
 Draft a Redfern schedule/ request for documents: table of documents created
by one party to demand documents; contains column of documents, rationale
for asking, whether approved by respondent, and why not, and the claimant
contests the rejection [ On the basis of the schedule, arbitrator can order the
discovery of the document]
 r/w S.3 of the International Bar Association of taking evidence in international
arbitration-vakal Rules on Arbitration (soft law)
 Can ask for respondents’ documents (but respondents’ lawyers can remove
privileged info: spouses, lawyers-client conversation, minor’s information,
private information) – Laws of Privilege (Redaction)
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 Type of privilege: spouse, confidentiality (legal privilege)

etc
 The primary purpose of the document (whether relevant or
whether protected by privilege) is decided through the
Redfern schedule
 Courts can subpoena documents, but what about arbitrators? – arbitrator can
hold an adverse inference if parties do not produce the document and can order
punitive costs
 Civil systems do not have document discovery; but common law have (but in
arbitration, most jurisdictions have accepted document discovery)

o Rounds of written submissions and counter-submissions by the parties

 Preparation of witness statements
 Cross-examination of witnesses also allowed
 Witness testimony – taking evidence during arbitration
o Evidentiary hearing
 Rules of evidence can be adopted at the time of the contract itself, or later on
o Closing statements/ post-hearing briefs
 Oral hearings
 Or post-hearing briefs – a summary document by parties
 Decision and Award

Tribunal gives a reasoned decision based on the issues

 Post Award Processes

Enforcement
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Lecture 3 24 th
February
2023

Mr. Shreeyash Lalit

The client comes to you and says there has been an FIR- the first question is, has anticipatory
bail been acquired? If you have anticipatory bail, it survives till the end of the trial. what if
you don't have an anticipatory Bill? You file for anticipatory bail as soon as possible. Then
the second question comes up- What are the offences involved? If the offences are grave and
serious, it is quite possible that the Sessions court is going to decline anticipatory bail on
account of various facts but essentially your presence needs to be secured.

Anticipatory Bail- Section 438. Direction for grant of bail to person apprehending arrest-
When any person has reason to believe that he may be arrested on an accusation of having
committed a non-bailable offence.

Regular bail- while you’re in custody (bailable and non-bailable)

Interim bail- bail is granted for a short period of time and it is granted before the hearing for
the grant of regular bail or anticipatory bail.

Default bail- a right to bail that accrues when the police fail to complete an investigation
within a specified period in respect of a person in judicial custody. (60/90 days)

Remand- Remand is a situation where the police are still investigating. The chargesheet has
not been filed and therefore under 167, the magistrate has to remand you for a certain period
of days and the police ask for such an application and therefore ask for your custody. That is
for you to be remanded for a particular period of time, which is why it's called a remand
application. The police file that remand application before the magistrate, the magistrate will
then determine for how long and where will you be in police custody or judicial custody.
Police custody versus judicial custody means that in police custody, you will be in one of
those barracks in a police station and judicial custody would invariably mean that you are
sent to jail- Tihar etc

S.27 of the Evidence Act says that anything discovered in pursuance of a disclosure
statement would be admissible.
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In a prima facie civil matter case, you can also exercise both (civil and criminal) at the same
time if there is an element of fraud or cheating involved.

CRPC states that if you have not been traceable for the purpose of an investigation and a
written proclamation is also been issued against you under 82 (1) and despite such a
proclamation if you're still not appearing before the court and you're still not appearing before
the police officer to assist him in the investigation. Then under 82(4), the court can make an
inquiry and pronounce him as a proclaimed offender and make a declaration to that effect. the
biggest problem under anticipatory bail is that if you have been declared as a proclaimed
offender under 82(4)-Your anticipatory bail is not maintainable. Because it's a judicial order
that has been passed and there are various Supreme Court judgements on this matter.

What do you do now since you maintain anticipatory bail? challenge the Magistrate’s order
declaring him as he proclaimed offender. How do you do this? You tell us first where all
were you. Were you traceable? Did you receive any notices from the police? Were there any
41 (a) notices where you were required to assist? If no, that helps- because this means that the
police never wanted to seek your assistance, but they've still gone ahead to declare you as a
proclaimed offender (Sunil Tyagi [Link]- only in a grave and exceptional situation, after
seeking to arrest him on number of occasions and ensuring that the affidavit is also placed on
record from the police officer etc guidelines, since there is a violation of the guidelines
provided by the Delhi High Court, As a result, this proclamation as a proclaimed offender
was incorrect and the HC can quash it under S. 482 CrPC and then you maintain anticipatory
bail.

437 CrPC- magistrate can only pass orders in such matters where the offence in itself is not
punishable with life or death. Then you have to go to the High Court, which involves 439
CrPC. S.439 gives the power to the High Court and the Sessions court to grant custody, to
grant Liberty, or rather bail, in matters where the magistrate possibly cannot intervene.

Twin Conditions: The offences are so drastic and the offences are severely damaging to
society that maybe you might be able to argue that the twin conditions subserve a larger
public interest. However, the problem is that the twin conditions then impose such a high
degree of standard that it is almost impossible for the person concerned to be able to get bail.
There is a bar under section 45 of the PMLA (Prevention of Money Laundering Act). S 37 of
NDPS Act. S21 of MCOCA (Maharashtra control of organised crime)
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You need to satisfy the twin conditions, which means that you need to show that positively in
condition number one. You need to show that you have not committed an offence.

And #2 that the court needs to be confident that you will not commit a similar offence again.
You only need to satisfy reasonable grounds and not a standard beyond a reasonable doubt.

There are 2 types of witnesses- public (general people/victim/complainants etc) and formal
(police force/doctors), you can expedite the bail after the public witnesses have been
examined.
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Lecture 4 10th March 2023

Mr. Keshav Gulati

Civil Trials Including an Introduction to Commercial Cases

Broadly, there are three kinds of civil dispute resolution mechanisms:

o Suits

o Summary proceedings in specialized tribunals

o Alternative Dispute Resolution

• Stages of a suit:

o Institution of suit

o Summons to the defendant

o Written statement

o Replication

o Documents

o Framing of issues

o Examination of witnesses

o Final arguments

o Judgment and Decree

• Pre-trial procedures

o Getting acquainted with the facts

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 This should be done before determining the legal strategy; Plaintiff approaches with a
factual narrative; Narrative will pertain to the wrong she has suffered or right she wants to
exercise; Advocate will study the narrative and any documents in a legal perspective;
Advocate will identify the remedies available to the plaintiff in law

Civil trial addresses a civil wrong that has occurred. Civil wrong is basically the rights either
in rem (against state) or in personam (against person) have been violated and the sufferer
wants to exercise relief and enforce those rights.

• Common kinds of suits and reliefs claimed from them:

o Reliefs in suits of contract

 Specific performances – to perform exact terms of contract

 Damages – under Contract Act

 injunction

o Reliefs in suits for torts

 Damages

 injunction

o Relief in recovery suit – filed under Specific Relief Act; which provides a specific
relief that you can seek in money.

 Recovery of money

 Interest

o Relief in suits relating to property (immovable)

 Partition

 Declaration of title

 Possession

 Injunctions

• Pre-institution checklist
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Before filing a suit, the following checklist needs to be covered:

o Parties – who to sue?

o Jurisdiction – where to sue?

A general thumb rule is that you sue a defendant at his place of residence. However, if the
cause of action has accrued in multiple places, you may also be able to file a suit there.

 Territorial

 Pecuniary – based upon the valuation of a subject matter of the suit

o Limitation

o Court fees

o Pleadings sworn, signed and verified

o Vakalatnama – a document by which the pleader authorizes the lawyer to approach

Court on his behalf. – when u institute the suit and defendant- when you file your written
statement.

• Conduct of a trial:

o Institution of a suit

 How is a suit filed

> E-filing

> Physical filing

 Advance service – mandatory to serve the other side in advance by the court.

 Role of the registry – ensures that you have complied with all the rules and notices. In
cases of deficiencies, gives you a list of defects that need to be cured within a certain time
depending on the court.

 Listing of the suit

 The cause list

The plaint needs to have the facts, reliefs you are seeking, cause of action (including the
particular dates and particular events due to which the cause of action arose), a paragraph that
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talks about the jurisdiction, and a paragraph on court fees, followed by prayer. Along with the
plaint, applications are attached. Applications generally contain the interim release that is
sought. Documents need to be compiled. A list of dates and a synopsis of the matter also need
to be attached. The plaint and applications need to be supported by affidavits that are signed
by plaintiffs and notarized by a notary.

o The first hearing

 Admission of plaint

 Issuance of summons

> Process fees – amount that the court requires to process your summons

> Dasti – if the court grants you the interim relief, you ask for the Dasti copy of that
order. Dasti copy is that you don’t wait for the order to be published online and then seek a
certified copy; you ask the court to give you the order on the same date either under the
court’s signatures or under the signature of the court master. Logistically, you get that order
to present to the defendant or to stop a particular action.

 Interim relief

> Ex-parte ad interim relief – an order passed, or a decree passed in the absence of the
other party.

o Defending the plaint – a written statement

 Appearance on the date of summons

 Filing a vakalatnama

 Seeking time to prepare written statement

 Denying the allegation – specific denial is necessary

 Set-off and counter claims – set-off refers to claims against the plaintiff regarding
different transaction whereas counter claims refer to same transaction.

o Replication – CPC doesn’t provide for it but Indian Courts have granted the plaintiff
the right to reply to the written statement; no mandate for specific denial.

o Documents and Examination

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Interrogatories – questions one party asks another after the pleadings are complete

Discovery – regarding documents; can ask the other side to produce certain documents that
you think are relevant

Inspection – when you want to inspect the records to figure out whether there is anything
relevant

Admission/denial of documents – each party needs to either admit or deny the documents
they have supplied. If document is admitted by both the parties, it becomes an undisputed fact
and becomes an exhibit. Every document that is denied by the other side has to thereafter be
proven by the side presenting that document. Documents that are admitted are marked as
exhibits whereas the documents that are denied are marked as marks.

o Framing of issues

 Who frames issues

 Burden of proof

o Examination of witnesses

 Who are witnesses examined before? Either before the court or the Commissioner
appointed by the court

 List of witnesses

 Summoning of witnesses

 Examination in chief- marking of exhibits – in the form of an affidavit

 Cross-examination

Re-examination

o Final arguments

 Preparation for arguments- Research on issues of law, Notes, Briefings

 Arguments

 Written submissions – basically include facts, arguments, and case laws.

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o Judgment and Decree-Pronouncement in court, Will deal with each issue which was
framed, Decree determines the right of the parties quash the disputes, Defect in decree,
Certified copies, Enforcement of a decree

Sometimes enforcement of a decree is not enough, hence, need to file for the execution of the
decree. The court will take charge and ensure that the defendant complies with it.

Lecture 5&6 13-14 th March

2023

Mr. Sougat Mishra

Criminal And CBI Trials Post Chargesheet

White collar crimes – generally all the criminal litigations that arise within white collar area
pertain to certain IPC offences such as cheating, siphoning, criminal breach of trust, et cetera.
Sections such as Section 400 to Section 420 IPC.

• Section 406 and Section 409 are sections relating to breach of trust. Breach of trust is
the most invoked section when it comes to white collar crimes.

• A lawyer needs to be extremely careful while dealing with a case u/s 409 as the
punishment is beyond seven years and is quite a serious offence.

• Prevention of Money Laundering Act (PMLA) and Prevention of Corruption Act

(PCA).

• FIR in cases of local police and RC (regular case) or ECIR (enforcement case
information report) in cases of CBI or ED (Directorate of Enforcement) respectively.

o RC is uploaded on the website of the CBI within 24 hours of its registration.

o Once an RC is registered, CBI will demand interrogation of your client.

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> CBI cases involve serious economic offences therefore arrest are routinely conducted.
Therefore, it is important to accompany your client to the CBI office and not let them go
alone.

> Always ensure that notices are served and that clients do not go pursuant to an oral
request. If oral request is tendered, ensure you have written communication to place on record
that you attended the proceedings.

> In case of arrest, you have to go to the CBI court where they will be produced and
ensure that you ask for a copy of the remand application.

o Always ensure that your client memorizes every discussion or statement or interaction
with the CBI in a written form.

o Arnesh Kumar vs State of Bihar – creates a distinction when it comes to arresting

someone w.r.t offences that are punishable for a period 0 to 7 years. If your client is being
investigated by a police officer/investigating officer, Section 41 read with Section 41A of the
CrPC needs to be respected by the investigating officer. It is impertinent for the police officer
to serve your client with a written notice before making the arrest.

o Common grounds taken to assail a remand application for white-collar crimes:

> Client cooperated during investigation.

> Evidence is documentary in nature and does not require custodial interrogation
(principle – documents speak for themselves).

> Arrests of co-accused, if any. In case of no arrests, it is easier to approach for bail.

> Bail of co-accused, if any

> Medical grounds

> Witnesses left to examine

> Filing of chargesheet

o In ED (enforcement directorate) cases, the process is more difficult as a defence

council. ED does not upload its ECIR. One has to approach the writ court or the remand code
for a copy of the ECIR. Furthermore, Section 45 of PMLA is a strict provision. The
likelihood of not having committed the offence is the threshold. Therefore, always keep
petitions ready to be filed before the Delhi High Court.
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> One of the reasons might be that with the uploading of ECIR, the secret information
collected against the criminals over the years might come to light which will result in the
criminals hiding or shifting their money, making it difficult for the agency to apprehend
them.

• Chargesheet in CBI cases:

o Column 11 in the chargesheet deals with the people who have been charge-sheeted.

> Charge-sheeted – people who are considered to have committed a wrong and deserve
to be convicted. List of documents is an essential part; List of witnesses (u/s 161 and 164
CrPC) is the third part; Necessary acts to undertake as a defence counsel after filing a
chargesheet:

> Preparation of list of dates, and list of allegations. (personal use)

> List of dates helps in giving a clear understanding as to how the file was moved, how
the money changed hands, who met who, when did those meeting happened, et cetera.

> Client input is extremely important in white-collar prosecution. At the same time, do
not hesitate to put difficult questions to your client if his story does not add up. It is more
important to ascertain your defence than to protect the feelings of your client.

> Procurement of defence documents. RTI method is one way to go about it. Public
documents can be procured through notifications, memoranda, et cetera.

> S.294 CrPC – no formal proof of certain documents.

> By invoking this section, prosecuting agency is put-on spot, and they have to either
admit or deny a certain document.

o Filing of the chargesheet by the investigating officer.

Satender Kumar Antil vs CBI, SC judgment. If you have not been arrested during the
investigation, the court cannot send you into custody. The court can only do that if you’re
someone who can abscond and need to provide reasons for thinking that way. If during the
investigation your client was arrested, you can post for bail on the grounds that a chargesheet
was filed. However, be mentally prepared to argue the matter on merits. If your client was
arrested during the investigation and granted bail, you do not have to file another bail
application as the bill will continue even after filing the chargesheet. This principle was
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extended to anticipatory bails as well in the recent Sushila Aggarwal judgement. If your
client was never arrested during the investigation, in that case, you still have to carry a bail
application, surety bonds, FDs, et cetera.

Chargesheet contains a seizure memo and/or a production memo.

• There are two ways for a CBI officer to collect the documents – asking the individual
to produce the documents (production memo) or by seizing documents through raids (seizure
memo). Once the chargesheet is filed, the stage of scrutiny occurs.

The stage of scrutiny involves any criminal attorney looking at the seizure memo and seeing
whether all the documents in the seizure memo have been provided or not. Sometimes, the
CBI officers might not want to produce a document in court as it might help your client but
through the seizure memo, you are aware of all the documents. In case something is missing,
you can file an application u/s207 CrPC.

S.207 – supply to the accused a copy of the police report and other documents.

Order on charge versus Charge: Order on charge – an elaborate common order that the court
passes after recording every allegation levelled by the council and recording every rebuttal
argument, also contains the judgments dissected by the court, contains findings and
conclusions. Charge – the closest analogy would be that of a decree. Extracts from orders.

14th March 2023

What happens when you are granted anticipatory bail in the context of filing of chargesheet?
does it cease to exist? Does it continue or does it continue until a certain period?

An anticipatory bail, if granted before the filing of the charge sheet will continue to exist
even after the filing of the charge sheet, until or unless it’s decided otherwise by the court.

Prosecuting agencies- documents that they have produced or they have not produced in
entirety have been covered under section 207 of the CRPC

Order on charge is a very crucial document when you have been charged with a certain
offence.

A trial consists of two parts- prosecution evidence and defence evidence.

The prosecution has in its chargesheet, a list of witnesses- All those witnesses will be called
by the court to come and depose on oath whether those events transpired or not, whether a
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certain particular fact occurred or not, and prosecution evidence begins with examination in
chief of a witness.

 Examination in chief is conducted by the public prosecutor or the special prosecutor in cases
of CBI or Enforcement Directorate. Examination in chief is a very descriptive form of
examination of a witness, because you are allowed to ask questions to a witness which the
witness has to respond in an exhaustive, detailed, descriptive manner. A prosecutor or a
counsel at the end of the day cannot ask questions in a way to compel the witness to answer
in a form that he wants to hear. Which is something that is allowed in cross-examinations i.e.
putting leading questions.

What exactly is a leading question? 

A question under chief examination would be for example- If I am examining a witness who
raided some politicians house in a corruption case, my question as a CBI prosecutor.

To that witness will be in the form of what happened on the night of 1st January 2023-
questions that cannot be asked in a yes or no.

Cross examination entails questions such as- Is it correct that the investigating officer of this
particular case was not present at the time of you entering the House?

The most important thing you need to know is what exactly do you have to prove to the court
tomorrow? That comes from your order on charge. You always refer to what you are actually
facing after the stage of charge.

Spot crimes are crimes which have to be proven by witnesses who were at the spot at the time
of occurrence of the event, which could be a murder case (all offences against body, ndps act
etc)

242(3) CrPC- The exception to a public prosecutors prerogative to call witnesses in any
manner he wants to. There's an exception to that, the exception being that if the accused, if
the Council for the accused, is able to show to the court that look if these three witnesses are
called on the same day and remain in the in the courtroom at the same time, the witnesses
were supposed to come tomorrow, we'll know what they are going to say and they will.
(Vijay Kumar vs State)
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How to prepare for a trial? (S. 167(2) makes the IO file a chargesheet in a hurried manner
<withing 60-90 days or you get default bail>, what they do is file a First Chargesheet and
state that further investigation is being carried out in terms of S. 173(8) CrPC)

Always read through the PW statement under section 161 or even 164 (before the court of
MM or JMFC) carefully; Make a note of the documents that the PW will be relying upon to
prove his case against your client; Always carefully examine the contents of the documents

Under section 91 CrPC, you can call for any document the moment you know it exists, you
can call for it. 

Primary evidence (eg- photographs, videos, original documents) and secondary evidence (eg-
photocopies, summaries, transcriptions)

Attested statements and original documents are admissible in courts as evidence. How will
the code know that it's actually being pulled out from MC?

There are two ways to go about it- Either you file that evidence and get it attested, or you get
that printout with S. 65B Indian evidence certificate.

A statement of the accused under section 313 of the CrPC. The statement of the accused is
basically an opportunity given to the accused person. To make certain statements. To clarify
his position. The court will put questions to your client. You cannot answer those questions.
You cannot help your client answer those questions.

After this comes the Defence Evidence

Lastly, final arguments and written submissions- a very exhaustive piece of work, You need
to ensure that you’ve poured into every little detail of the particular matter, including the
prosecution evidence, including the difference, evidence, and then you literally give
something in writing to the court that you know the court will pick up and put it in the
judgment, copy, paste and pass that judgment in your favour.
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Lecture 7 17th March 2023

Ms. Sugandha Batra (Advocate, Delhi)

Civil Commercial Court Litigation at The Trial Stage

A civil matter generally has three stages:

o Filing of pleadings and completion of pleadings

o Trial – most important stage in a suit as the case is built here

o Final arguments and what has come out in trial by way of evidence

When a client approaches you, first thing that needs to be determined is whether you can file
a civil suit; whether there is a remedy in writ; or whether an arbitration clause exists that
precludes you from filing a suit. The second step that needs to be taken before filing is
whether there is a valid cause of action. Cause of action means there is a legal remedy to
pursue. Cause of action arises when there is an agreement between two parties and a breach
occurs in that agreement. Eg – a family property is owned by A. A dies before bequeathing
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the property between the two sons X and Y. A cause of action arises because A died and the
property needs to be divided between two siblings. Cause of action that is arising must be
within the limitation period. If more than 3 years have elapsed before the cause of action
arose, a lot of issues arise when trying to get the suit admitted in the court; you need to file a
condonation of delay application; however, the suit can still be thrown out on the threshold of
limitation.

• Commercial disputes are defined under S.2 (1)(c) of the Commercial Courts Act. By
looking at the agreement it can be decided whether the suit is a simple suit or a commercial
one. There exists a mandate in the Commercial Courts Act that commercial suits need to be
decided within 1 year. While assessing a case, the lawyer needs to see what relief the client is
seeking. Eg, in Delhi, if the client is seeking relief for recovery in the agreement, a suit for
recovery is filed. If the money that you’re seeking to recover is more than one crore, it goes
to the High Court. There is a pecuniary jurisdiction ascribed in the Act that states if the value
of the claim is more than one crore, it goes to the High Court or it goes to the Trial Court.
This happens only in Delhi because Delhi has original jurisdiction all the other states don’t
have original jurisdiction which is why it will only go to the trial court in those states. Delhi
High Court, Bombay High Court, Calcutta High Court, and Madras High Court all have
original jurisdictions. These courts have original jurisdictions because you can file an original
suit here.

Original suit – suit filed at court of first instance. For instance, if a suit is filed in District
Court, then the suit is original suit in District Court. Though the same case can reach a higher
court in appeal, the original suit would still be considered to be filed in District Court. After
you have seen the pecuniary jurisdiction of the case, the suit is drafted. It’ll be a suit of
recovery drafted in the form as prescribed in the CPC.

• Nomenclature for a suit

A suit in Delhi High Court is numbered CSOS (Civil Suit Original Side). For a commercial
suit, it is CSOSCOM (Civil Suit Original Side Commercial).

When a suit is filed – which is a plaint – it is replied to by way of a written statement. Then
there is a replication of the written statement. In certain cases, courts allow a rejoinder to be
filed to the replication. A lot of documents need to be filed while filing a suit, however, the
rule is that the best evidence should be filed first. The contract and the correspondence
between the parties should be annexed to the suit from the first go. Everything that is in the
 24

power and possession of the parties need to be filed with the suit and the written statement.
Only in exceptional circumstances can documents be filed later on and even then the parties
need to prove that these documents were not in their possession or that a new fact has come
into light which has necessitated filing of these new documents on record. Since most of the
correspondence is done electronically, while filing such documents an affidavit under Section
65B of the Evidence Act needs to be attached.

o Section 65B – documents that have been obtained electronically are legitimate
documents. There is a lot of conflict when the trial stage commences. Some courts are of the
view that a trial commences when evidence is filed by a way of an affidavit in court. Other
courts believe that it commences when the witness enters the witness box. This issue is being
adjudicated by the Supreme Court.

o Anita vs Anil, 2021 SCC Online SC 3250.

• Before filing of evidence affidavit, issues are framed. Steps to prepare for trial:
Deciding who is going to be key witnesses. Filing evidence affidavit for each witness. It
should not just have facts but also the witnesses’ version of the story. It has to refer to all the
documents that have been placed on record. Very important to give exhibit numbers for the
purpose of identification. Making sure the witness is well aware of the facts because it is on
the basis of the evidence affidavit the witness will be cross-examined. Make a list of mock
questions which your witness might be asked to better prepare them and to ensure that the
answers are to the point.

• Three points to remember for cross-examination:

o Mock list of questions for client

o Stick to the evidence affidavit

o Pointed answers.

• If the parties want to settle the matter, it is better to put forth a joint request to the
court to refer the matter to a mediation center; to ensure sanctity and quick disposal.

• Order XIII-A – related to summary judgment. Summary judgment is a decision

made based on statements and evidence without going to the trial. Only applies to
commercial suit. Order XIII-A Rule 3 is very important – grounds for summary judgment.
Order XIII-A Rule 7 – conditional order.
 25

Vital parts for final arguments: Need to see if your claims are all intact. Each claim should be
backed up by case law

Lecture 8 24th March 2023

Mr. Gaetan De Robillard (Signature Litigation, Paris)

Trials in the civil legal system the French approach

French law is codified, so the Parliament votes on laws which are then compiled in different
codes. Hence the Civil Code, which is extremely important because you can find within that
code the French rules for contract law tort law family law and anything and everything which
is civil and contractual. There are more than 30 codes in France.

French Court System is a two-degree system with lower courts which are specialized in
different areas of law- there are civil courts, commercial courts, criminal courts, etc. and then
you can appeal the decision handed down by the lower courts before the Court of Appeal,
which is also divided into several chambers which are specialized in specific areas of those at
the lower court where the judges will look into both the facts and the law, whereas at the
 26

Supreme Court when you appeal the decision handed down by the Court of Appeal, the
French supreme court- Cour de Cassation, will only look into legal issues.

The French judges sitting in the civil courts are professional judges, they are trained in a
specific and single school in France which is called the Ecole Nationale de la Magistrature.
The courts have 3 standing judges but in practice, there are more and more single judges
because of lack of resources. There is no personalization, it means that we don't really know
the name of the judges. We are not profiling the judges before the hearing. It doesn't really
matter in the French law system because it's more like an anonymous process. The judges can
move courts and there is no jury in the French system except for some specific criminal
courts.

Commercial Courts have a layman as judges- former professionals in different fields not
specific to law.

Courts of Appeal- When the party is appealing the judgment of a lower court it still has to
abide by the lower court’s decision, because otherwise its appeal can be dismissed so the
treatment at the lower court is enforceable as soon as it is rendered. There is a month to
appeal that decision. Unless you are a company or a party that is located in a foreign country,
then there are two additional months to appeal those decisions and all the procedural delays
that are provided by the French Civil Procedure are extended by two months if you are a
resident of a foreign country. The Court of Appeal reviews both the facts and the laws of the
cases from the beginning. The parties may submit a new legal argument- new evidence.
However, they cannot provide or raise new claims like the legal debates are set from the
beginning, from the writ of summons that is filed before the lower courts. You cannot modify
your claim at the level of the Court of Appeal. The decision of the Court of Appeal can be
appealed before the French Supreme Court. The appeal does not suspend enforcement- still
have to to to abide by the decision of the Court of Appeal, even though you are challenging
it- two months to challenge and two additional months in case of foreign jurisdiction. The
Supreme Court will only deal with legal issues and will not look at the fact of the case if the
decision of the Court of Appeal is squashed is overruled, then the case will be remanded to
another Court of Appeal and the process start again but the second time the decision of the
SC is final.
 27

French Trials- Commercial Courts- Organize status hearings on a regular basis. Eg, you have
status hearings every month until the case is ready to be tried. Some of the courts, mostly
civil courts, hands down the procedural schedule,

Different types of hearing. hearings on the procedural aspects and hearings on the merits of
the case. Hearings do not last for long roughly 2 hours.

Civil courts have a formal pleading style whereas Commercial courts have more of a Q/A
with the judges. French Courts emphasise more on written submissions more than oral. The
language of the proceedings is mandatorily French, even English docs have to be reproduced
in French.

Judgement has 4 parts:

summary of facts,

a summary of each party’s reasoning,

court reasoning and

courts ruling- there is no dissenting or concurring opinions.

Some flexible procedural rules that are governing the functioning of the international
Chamber of the Paris Commercial Court. There is a procedural schedule and you have the
possibility to examine, witness and expert, which is not common in not common in France
and also the English language is allowed- because it is part of the EU. The decision handed
down by these courts are enforceable across the EU.

Time line- 9- 18 months for decisions, for fast track proceeding, what we call the summary
proceedings. This is extremely fast and you can have a decision on urgent matters within
weeks or even days sometimes. For appellate decisions, you have to wait approximately 2
years and then so the whole process from the service of the writ of summons to the decision
of the Supreme Court, you have wait for about four to five years.

Discovery/ Disclosure

They do not have pre-trial discovery in France because this is contrary to the adversarial
principle (to what is logical and reasonable). Discovery is against fundamental right. Parties
in civil jurisdiction can file only the evidence that they wish to rely upon, and can hide every
document that they do not want to file with the court. However, sometimes the court has the
 28

power to require mandatory disclosure, but this is only for a specific document. The court
cannot request from the party to share any type of document and the same goes for the
plaintiff and talk about that later on.

At the EU level, a new directive was proposed. This is the product liability directive. This is
currently under discussion at the EU Commission. Article 8 states that the claimant who has
presented facts and evidence sufficient to support the plausibility of the claim for
compensation. Can ask or order the defendant to disclose relevant evidence. Courts limit the
disclosure of the evidence to what is strictly necessary and proportionate to support the claim.

Pre-trial investigative measures

Ex-parte orders may be obtained to gather evidence if the legitimate reasons for the same can
be provided.

Expert investigations.

As soon as you have to look into the facts of the case and if the courts need needs to to be to
be informed by a technical expert to get an opinion, an independent authorized technical
opinion on the on the technical issue.

There is no recourse to witnesses, no depositions, no oral testimonies. The only type of cases
where you have examination of witnesses is in criminal proceedings. There are written
testimonies but not really significant.

French lawyers can’t advertise. Renumeration is hourly based or a lump-sum fee and above
all this success fee. Do not have the US, UK Style attorney-client privilege. Do not have this
privilege in France. Do not have it either at the level of in-house Council- inhouse Counsel
advice or opinion is also not protected per se. When they communicate with clients, have to
be extremely careful to put that every communication is privileged and confidential. Without
this mention, it is not protected. There is a duty of professional secrecy -one cannot share the
discussion and the information that is given by the client and communication with opposing
consoles are confidential.

 Principle of full compensation of damages. The whole injury but solely the injury- experts
weigh in to determine the evaluate the damages. This is complicated for moral damages.
 29

Each party pays its own legal fees however the court may order the losing party to pay a lump
sum to the prevailing party in consideration for the legal fees borne (Article 700 procedure).

Class Action Systems- It is not widely spread, they are available in limited areas such as
consumer law, competition law, personal injuries, discrimination, environment, and personal
data. Only the authorised associations have the power to bring a class action to court these
class actions have limited success. France has mass litigation rather than class actions.

Regulatory Investigations- take place when there is a lack of compliance with the laws and
regulations which leads to administrative/ criminal sanctions. Regulatory investigations can
take various forms add can trigger parallel court proceedings or after regulatory
investigations.

Case Study: French Product Liability Case

Summary proceeding

• No discovery / disclosure under French law

* Fasttrack proceeding: no discussion on the merit. The claimant shall establish that its
request is legitimate

• Court-appointed expert: gather elements of fact

•Expert operations: several meetings to investigate the technical issue in the presence of (i)
the expert, (il) the parties' lawyers, (iii) the parties' representatives, (iv) ex parte technical
experts, (v) third-parties.

Adversarial process

Final report: provide the court with an independent authorized technical opinion

Claim on the merits

* Causes for action: product liability law / contract law / tort law

•Court-appointed expert report: not binding but in practice its is mostly followed by Courts.